✪✪✪ Equal Rights Amendment Research Paper

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Equal Rights Amendment Research Paper

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Equal Rights Amendment: Last Week Tonight with John Oliver (HBO)

When photons, sounds waves, particulate remnants, and surfaces that reveal things are not available, such things are concealed, and the drawing of inferences about people is blocked. This, again, is how people protect privacy. They did it this way in the late-eighteenth century, and they do it this way today. It is not enough, of course, for people to withdraw into their homes, lower their voices, or get dressed. When people enter their homes, they do so relying on the aggregate of rights that prevent others from entering or accessing their homes to discover what goes on within. They rely on property rights, as Danny Lee Kyllo did. When people put on clothes to prevent photons from revealing the appearance of sensitive areas, they do so relying on protection against wrongful physical contact that might strip the body of its wrappings.

They rely on the law of battery, as Terry did in Ohio. Sometimes people do rely almost entirely on physics to protect privacy, such as in Katz , by lowering and shrouding their voices in public places. And sometimes they rely heavily on law, such as when they share information with a fiduciary or service provider bound to confidentiality by contract or regulation. Most of the time, people protect privacy using natural laws and human laws together to conceal. When government agents seek to expose concealed things, threatening privacy or rendering it asunder, that is searching. But reasoning backward from privacy expectations is not a sound way to administer the Fourth Amendment. The question of privacy expectations produces maladministration of the Fourth Amendment.

Courts are not at their strengths examining why people erect physical barriers, what they think about them, or what others should think of their thinking. The Supreme Court has not historically relied on privacy and privacy expectations. Most cases rely on concealment and exposure. The constitutional import of a search or seizure turns on later questions such as whether the search was of a constitutionally protected item and whether or not the search was reasonable.

Some care is required to fastidiously identify seizures and searches, of course. The former is any invasion of a property right, and the latter is intense sensing, often signaled by effort to remove concealment from something and give it exposure. The house, the body, the gun, and the paper can be seized and searched. The wire, the communication, and the data can, too.

They are all potential subjects of seizure and search regulated by the Fourth Amendment. When there has been a seizure or search, the next question is whether it was of a constitutionally protected item—a person, house, paper, or effect. Perhaps absorbed by confusing Fourth Amendment doctrine, the Supreme Court has rarely made explicit what the contours of these concepts are. But they are mostly familiar and commonsensical. Oliver v. Government agents who invade uninhabited private lands should be liable for trespass, perhaps, but they do not violate the Fourth Amendment. It was not papers as a form-factor for cellulose that the Framers sought to protect, but the common medium for storage and communication of information.

The federal trial court system has recognized, as it must, that digital representations of information are equivalent to paper documents for purposes of both filing and discovery. At least one lower court has found constitutional protection for email clearly enough to rely on its premise that email represents a paper or effect. Warshak , the U. Email is the technological scion of tangible mail.

A car is an effect. Whatever the case, if a constitutionally protected item was searched or seized, the final question is whether that was reasonable. But the more methodical analysis allows for such a thing as a reasonable search or seizure. This is where the judging should occur. And it has less to do with the ordinary sensibilities of decent people, as modern usage would suggest. That which was inconsistent was unreasonable and, ipso facto, illegal.

Searching or seizing that falls within these bounds would almost always be constitutionally reasonable. But a seizure or search that would be a civil or criminal wrong under ordinary circumstances must occur only after the second-thought and third-party review provided by the warrant application process. The Olmstead Court would have done well to heed the Washington state law that made it a misdemeanor to intercept messages sent by telegraph or telephone. To serve well, the reasonableness analysis must allow for reasonable seizure and reasonable search. Imagine a law enforcement officer walking down the street. She trips on a crack in the sidewalk and reaches out to steady herself on a nearby automobile, leaving a noticeable smudge.

The better way to think of steadying oneself on a car is as an entirely reasonable seizure. Were the officer to have converted the car to her purposes in a different way—attaching a GPS device to it, for example, so as to track its movements—this creepy behavior, recognized as illegal stalking in many states, [] is not reasonable without a warrant supported by probable cause.

The same goes for reasonable searching. Say our law enforcement officer is at the beach. Espying odd behavior—maybe an incipient fist-fight—off in the direction of the wharf, she raises her binoculars to her eyes and looks at what is happening there. It is an arguable invasion of the intrusion on seclusion branch of the common law privacy right. Courts will better analyze the abstract behavior without reference to what it turns up. They should be cautioned against reasoning backward, of course, and it will be fairly obvious when they do. There is no replacing the need for judging in close Fourth Amendment cases. Courts should use the ordinary meanings of the words in the Fourth Amendment and employ relatively familiar and settled property, contract, and tort concepts, as well as statute and regulation.

They should strike balances based on the facts in individual cases rather than by making sweeping pronouncements about privacy. United States v. But a more obvious analogy from principle to new technology is hard to imagine. Opening an email is a search of it. Courts may benefit from this straightforward mode of Fourth Amendment reasoning for years to come. In part, the failure of courts to administer the Fourth Amendment well can be laid at the door of the general legal environment, which does not yet comprehend communications and data very well. Our entry into the Information Age demands a new, higher respect for data, information, and communications as common law property.

The Fourth Amendment and society generally will benefit from legal development in this area, which would parallel legal advances of the past. In feudal times, prior to the development of trade and commerce, personal property was not well recognized by the law. It was treated something like communications and data are treated now. Benjamin Constant described in his classic speech, The Liberty of the Ancients Compared with the Moderns , [] how important rights in personal property were to the development of liberty. Property rights in movables emancipated the peon by allowing him to acquire wealth that was portable and, through wealth, a measure of independence.

They were used commonly enough and recognized as high-enough in value that the Framers of the Bill of Rights wrote their protection into the Fourth Amendment. The protection of these things as property helped form a nation conceived in liberty. Today, we are seeing a rise of commerce in information and communications that parallels the growth of commerce in personalty hundreds of years ago. But the legal environment around information remains in a feudal era.

With the growth of commerce in information, recognition of communications and information as a form of property would rebalance the relationship between the individual and the state. Justice Butler laid the groundwork for establishing clearer Fourth Amendment rights with respect to information in his Olmstead dissent. Under contract with telephone companies, callers have the legal right to exclude others from their calls. The communications themselves belong to the parties between whom they pass. And if it is, the final question is whether the search or seizure was reasonable. Crucially, this model puts courts in their familiar role of applying the law to the facts in cases that come before them. And it would help the U.

Supreme Court preserve the degree of privacy people enjoyed at the time of the Framing. He bequeathed us some very helpful ratio dissensi. Payne v. Tennessee , U. See William G. Tomlins ed. David R. Brandeis, The Right to Privacy , 4 Harv. Olmstead , U. See, e. Arch Wireless, 5 Seton Hall Cir. Art Tech. California , U. United States , U. See id. See Susan W. The ownership of information is similar to the contents of private conversation in which the information belongs to the parties to the conversation. Jones , U. There is a second phase to the Fourth Amendment, of course. We focus here on the existence of searching and seizing and their reasonableness when they exist, putting aside questions around the warrant requirement.

Brendlin v. Lafayette , U. People v. Riley , Cal. The legal authority to seize data would spring from discovery of it as evidence during a lawful search of the cell phone. Jacobsen , U. That provision is used more often to challenge civil seizures, and the Fourth Amendment criminal ones, but the two overlap. See Severance v. Patterson , F. City of Charlottesville , F. See ACLU v. The Court has been consistently unclear about what it is doing when it administers the seizure concept—sometimes suggesting an overlap between common law trespass and seizure. The confusion is aided by scholarship that conflates property, the right, with trespass, the cause of action.

See Orin S. This may suggest to some that property has no place in administering a right that makes direct reference to four categories of property. Guest ed. Macon , U. See Mathis v. City of Lyon , F. Garcia , F. Someone who knows a recipe for cookies, for example, has the right to use it to make those cookies, also enjoying the right to income from the recipe. Excluding others from information is a right that can be very valuable, such as the recipe for Coca-Cola. Secret-keeping and some forms of dishonesty are appropriate exercises of the right to exclude others from information, with valuable social and interpersonal purposes. See United States v. See Scott R. The Hippocratic Oath is the ethical expression of a contractual duty on health care providers, as the Supreme Court of New York has found, relying on contract liability when addressing unauthorized disclosure of confidential psychological information.

Hammonds v. Ohio As an implied condition of that contract, this Court is of the opinion that the doctor warrants that any confidential information gained through the relationship will not be released without the patient's permission. See Carpenter v. Seidlitz , F. See Susan E. The relationship of trespass to the Fourth Amendment was much discussed in Jones , S. Tennessee v.

Garner , U. A better way to reach the same result would have been for the Court to recognize the search, but find it reasonable for many of the same reasons around motor vehicle administration the Court found it not a search. Doing either would have violated his property right to exclude others. Orin S. What made the conduct in Kyllo a search was not the existence of the radiation signal in the air, but the output of the thermal image machine and what it exposed to human observation. But see Jardines , S. Most times people will just either ignore the individual, Fitting in Fitting in is an important part of life because it has almost everything to do with turning out in life.

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Service is excellent and forms various forms of communication all help with customer service. Dream Essay is customer oriented. Top Skip to main content. Main menu Research Our Records Veterans' Service Records Educator Resources Visit Us America's Founding Documents These three documents, known collectively as the Charters of Freedom, have secured the rights of the American people for more than two and a quarter centuries and are considered instrumental to the founding and philosophy of the United States. Declaration of Independence. Learn More The Declaration of Independence expresses the ideals on which the United States was founded and the reasons for separation from Great Britain. Read a Transcript. Bill of Rights.

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